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Does Your Estate Plan Include Your “Digital Assets”?


In a recent post, we noted the passing of Paul G. Allen, one of the co-founders of Microsoft. Allen’s will was recently filed for probate in Washington State, and while it is a largely boilerplate document–he left his estate to his revocable trust–it does contain one notable provision. The will expressly defines Allen’s “digital assets” and makes it clear that his personal representative (Allen’s sister) has complete authority to “access” and control his various online accounts.

It’s not surprising that one of the world’s great computer software innovators would think to include digital assets in his estate plan. But this is something we all need to do. Most of us will never enjoy Paul Allen’s level of material wealth, but we all have email and social media accounts that need to be disposed of after we die. And thanks to a 2016 Florida law–the Fiduciary Access to Digital Assets Act–we all have the right to designate someone through our estate plan to take charge of our online life after our physical death.

The Basics of Florida’s Fiduciary Access to Digital Assets Act

Broadly speaking, a digital asset is defined under Florida law as “an electronic record in which an individual has a right or interest.” This is separate from any interest in any physical asset that may happen to store the electronic record. For example, your laptop is a physical asset, but the files, photos, and passwords on it are all digital assets. Indeed, a digital asset’s existence is typically not limited to a single physical device, as most of us keep our electronic records “in the cloud” or through an online service like Facebook or Instagram.

Under Florida law, you may use your will, trust, or power of attorney to direct any company holding your digital assets to “allow or prohibit disclosure to a fiduciary.” Similar to what Paul Allen did in his will, you can simply include a sentence authorizing your personal representative to access your electronic records after you die.

Some services also provide an online tool that allows you to leave advance instructions for who may access your account after you die. If such a tool exists, and it allows you to “modify or delete” your directions at any time, then Florida law states these instructions will override any contrary provision in your estate plan. But if there is no such online tool, or you choose not to use it, then your estate plan’s instructions are binding on the custodian, even if it may conflict with the company’s terms of service.

Get Advice from a Florida Estate Planning Attorney

There are some additional aspects to Florida’s digital assets law that we will address in a future post. But suffice to say, if you haven’t considered what will happen to all of your online accounts if you die or become incapacitated, now is the time to start thinking about it. If you need additional advice or assistance from an experienced Fort Myers estate planning lawyer, contact the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a free initial consultation.


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